It's Time To Overturn Miranda

December 05, 1999|By Morgan Reynolds. Knight Ridder/Tribune Information Services. Morgan Reynolds is a professor of economics at Texas A&M University in College Station and director of the Criminal Justice Center at the National Center for Policy Analysis, a non-partisan think tank.

The U.S. Supreme Court has a magnificent opportunity to overturn its worst criminal ruling ever--the so-called Miranda warning.

During the 1960s, the left-wing majority on Earl Warren's court legislated new rights--privileges really--to help criminal suspects. Chief among them, as most viewers of TV cop shows know, was the Miranda ruling.

Miranda vs. Arizona (1966) actually resulted in three components:

- Police must follow a series of steps to guarantee that a confession is voluntary and therefore admissible in court (the so-called "warnings").

- A suspect may waive these rights, but he may retract his waiver at any time during questioning. If he retracts his waiver, he may never be questioned again about the case without a defense attorney present.

- Police compliance with these rules must be perfect or else even a perfectly voluntary confession by any killer must be suppressed.

Few object to the warning itself, including me. In fact, the Phoenix police had given a warning to Miranda back in the '60s and he had signed a waiver. That's what is meant by the cliche that the police "have learned to live with Miranda." But the other aspects of Miranda result in a rigid exclusionary rule that's not only unnecessary but has caused serious social damage by allowing uncounted numbers of felons to go free.

In the current case, a criminal named Charles Dickerson was involved in seven bank robberies in Maryland and Virginia.

He demands that his voluntary confession, vital to his conviction, be suppressed because the FBI did not properly Mirandize him.

So what? An obscure statute passed in 1968 as part of the Omnibus Safe Streets Act, known as Section 3501, exempted federal law enforcement from any Miranda requirement. The U.S. Court of Appeals for the 4th Circuit decided that the Miranda ruling was not a constitutional requirement and that the 1968 statute is valid. Too bad, Mr. Dickerson.

If the Supreme Court justices decide that the 1968 law passes constitutional muster, then logic implies that each state would be free to keep, discard or modify Miranda as it saw fit. Hooray! We'd be free of Miranda.

Back in 1966 dissenting Justice Byron White argued that "the court's new code would markedly decrease the number of confessions. . . . To require an express waiver by the suspect and an end to questioning whenever he demurs must heavily handicap questioning."

Justice White was correct. The data show that criminal confessions plummeted 25 percent between 1966 and 1968 and, in turn, dropped crimes cleared by an arrest by 25 percent as well. Arrests fell sharply all over the country immediately after Miranda and never recovered. It was good news for criminals and bad news for the public.

Utah law professor Paul Cassell calls Miranda "the single most damaging blow inflicted on the nation's ability to fight crime in the last half century."

Our precious civil liberties can be protected from police abuse in other ways, especially by videotaping interrogations. The Supreme Court probably will appoint Cassell to argue the case for the United States because the U.S. Justice Department does not want to defend Section 3501, despite its benefits for law enforcement.